Introduction: The Difficult First Amendment

The First Amendment looks easy. After all, its proscriptions are expressed in fewer than forty-five words. It further embodies a concept elegant in its simplicity: "Everyone has the right to say what they believe and to believe what they want." Yet even a superficial glance at modern Supreme Court jurisprudence reveals that, from its inception, the First Amendment was never easy. DEspite the Amendment's express mandate that Congress "make no law," the Court has never inerpreted it as an absolute.

Instead, the court has embarked upon a delicate and sometimes treacherous balancing act attemping to determine when free speech or religious exercise rights trump state interests and when they do not. So difficult is the Court's First Amendment doctrine that one scholar has quite fittingly describted it as "a vast Sargasso Sea of drifting and entangled values, theories, rules, exceptions, [and] predilections . . . requir[ing] determined interpretive effort to derive a useful set of constitutional principles."